Veteranclaims’s Blog

July 9, 2018

Single Judge Application; workplace efficiency; post hoc rationalization; Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991);

Excerpt from decision below:

“[T]he [appellant’s] limitations in his work include the need for a flexible schedule
to accommodate flare-ups of pain but still enabling him to work full[-]time, the
need for changes in position[,] including preparing his reports at a desk, and the
ability to leave work in the event of severe pain. The [appellant] required the ability
to change position to relieve his pain[,] which began after sitting or standing for
more than 30 minutes, and experienced pain if he had to walk further than one
quarter of a mile. . . . He experienced some nausea from his pain medication and
some impaired concentration because of pain and impaired sleep. However, the
evidence does not support a finding that the [appellant’s] thoracolumbar disability
and back pain, irrespective of other disabilities, result in a degree of interference
with employment greater than one-third normal efficiency. R. at 9. The Board offered no explanation why the evidence cited demonstrated only a one-third reduction in workplace efficiency. Although the Secretary asserts that the Board’s reference to
“one-third” is simply a restatement of the appellant’s current 30% combined disability rating, see Secretary’s Br. at 17-18, the Board itself did not provide this explanation, see R. at 9, and the Secretary’s argument amounts to a post hoc rationalization, which the Court cannot accept. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“[A]gency ‘litigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1774
WILLIAM J. WINNINGHAM, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

MEREDITH, Judge: The appellant, William J. Winningham, through counsel appeals an
April 11, 2017, Board of Veterans’ Appeals (Board) decision that denied entitlement to an
extraschedular rating in excess of 10% for a thoracolumbar spine disability. Record (R.) at 1-12.
This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from July 1998 to May 2008.
R. at 557. In service, the appellant herniated a lumbar disc and developed back pain radiating into
both legs. See R. at 138, 2108, 2118. In March 2007, the appellant underwent a laminotomy and
microdiscectomy to decompress the source of his lumbar and lower extremity pain. R. at 2108.
The surgeon who performed the appellant’s surgery later opined that the appellant was
“permanently disabled from being able to fulfill” his military responsibilities. R. at 1403. In
2
January 2008, the Physical Evaluation Board recommended the appellant’s separation from service
as a result of his back disability. R. at 2032.
In October 2008, a VA regional office (RO) granted the appellant’s claim for benefits for a
lumbar spine disability and assigned a 10% disability rating. R. at 1410-16. The appellant filed a
Notice of Disagreement with the disability rating assigned, R. at 830, and in July 2010, the RO
increased the appellant’s initial disability rating to 20%, R. at 682-87.1 The appellant appealed to
the Board.
The record contains many medical records regarding the severity of the appellant’s back
disability. In December 2008, the appellant reported to his private physical therapist that “even
simple things like getting a hug from his mom cause[d] an increase in back pain followed by
muscular spasms.” R. at 167. A January 2009 letter from the appellant’s private orthopedist reveals
that the appellant’s back pain “did not improve after his surgical treatment and [he] continues to
have significant difficulty with any sustained activity.” R. at 813. In April 2009, the appellant
reported to a private provider that his back condition “moderately to significantly affected his
enjoyment of life and moderately affects his general activity, work, housework, and sleep.” R. at
156. He further reported that “[t]he pain is worse with standing, walking, running, sitting, holding
weight overhead, weather changes, laying down for greater than [5] hours, and even people
hugging him bothers him at times. The pain is relieved by sitting, walking, or laying down.” Id.
In May 2009, the appellant underwent a VA examination. R. at 760-73. The appellant
reported that he had been prescribed hydrocodone for his pain, which he stated made him nauseous.
R. at 765. The appellant stated that walking was difficult and that he began to have back pain
within a quarter-mile, but could “uncomfortably” walk up to two miles. R. at 767. The appellant’s
range of motion was normal, R. at 771, and the examiner concluded that the appellant’s condition
caused no significant effects on his usual occupation, R. at 773. In May 2010, the appellant
underwent a procedure to implant a spinal cord stimulator in an attempt to relieve his back pain.
See R. at 58, 290.
A June 2012 letter from the appellant’s private treating physician’s assistant to his employer
included the following:
1 In that decision, the RO also granted benefits for degenerative changes of the thoracic spine and found that,
because “[t]he lumbar and thoracic spine areas essentially move together[,] . . . . [t]he thoracic spine findings are
incorporated within the existing lumbar spine disorder, with the combined issue elevated to 20[%].” R. at 683.
3
[The appellant’s] pain affects his activities of daily living. He cannot do any lifting,
standing, walking[,] or twisting for any[]more than 20 minutes or he gets increased
pain and that affects his ability to concentrate. The back pain also affects his sleep.
Not having enough sleep can affect how well he performs during the day. . . . Again,
pain limits [the appellant’s] ability to run, stand, lift or perform physical activities.
His sleep has been reduced to 4-6 hours a night due to pain. . . . Currently [his]
condition affects his mental functioning and ability to concentrate if he performs
any physical activities that aggravate his back pain. If [he] was allowed to do a
desk job or a less active physical job, I believe that his concentration abilities would
improve because it would reduce his pain.
R. at 290.
In August 2012, the appellant reported to a private anesthesiologist that his back pain
“primarily” affects his sleep because it is difficult to get comfortable and the pain often wakes him.
R. at 317. The appellant reported taking several medications, including Gralise, which “ma[d]e
him quite nauseous.” Id. The doctor recorded the following:
The pain does not really affect [the appellant’s] walking ability, although he says
that this is limited to about a mile. Sitting is limited to half an hour. Standing is
limited to about 10 minutes. Pain does affect his sleep, his social life, his traveling,
and, to a minor degree, his personal care. He is still able to lift heavy weights, but
this does cause extra pain. He feels as though his pain is gradually worsening,
although he rates it as moderate and relatively unvarying. [He] is fully independent
with all activities of daily living, working full-time as a forestry tech.
Id. The physician’s report included the following notation: “Function: ODI = 48%.” Id. The report
does not reveal the meaning of “ODI.” See R. at 317-20.
In February 2013, the appellant’s private treating physician’s assistant again wrote to his
employer, stating that it was unlikely that the appellant’s pain would improve and seeking the
following accommodations for the appellant at work:
1. He wants a maxi-flex schedule that includes 40 hours but has flexible times.
2. He would like to drive himself to the job sites so that if his pain is too high he
can return to the office and not affect another co-worker.
3. He would like to change his core hours so they are earlier in the day and he can
be more effective, because his pain usually gets worse as the day progresses,
especially if he is more active and on his feet.
4. Inspection reports. If he would be allowed to finish the inspection reports in his
office rather than in the field, then he could actually be sitting and in less pain.
4
R. at 284.
In February 2014, the Board acknowledged that the appellant had asserted that his
condition had worsened since the May 2009 VA examination and therefore remanded the
appellant’s claim for a new examination. R. at 538-41. At a May 2014 VA examination, the
appellant reported that the spinal cord stimulator reduced his back pain by 40 to 60%. R. at 138.
He further stated that prolonged sitting or standing, extended walks, lifting, or twisting induce
most of his flareups. Id. The appellant’s range of motion was reduced in all planes, and he
experienced “considerable pain” in all planes. R. at 139-40. After repetitive use, the appellant had
additional functional loss or impairment in the nature of less movement than normal, weakened
movement, pain on movement, and interference with sitting, standing, and/or weight-bearing.
R. at 140-41. Muscle strength testing was normal. R. at 141-42. The appellant reported that he
worked as a timber contractor for the National Forest Service and that his employer had made
accommodations to permit him to continue working. R. at 138. The examiner determined that the
appellant’s back condition affected his ability to work and stated that the appellant should avoid
prolonged walking, heavy lifting, and heavy labor. R. at 146.
In an undated memorandum prepared after the May 2014 VA examination, the Appeals
Management Center (AMC) recommended that the appellant be awarded an extraschedular
disability rating. R. at 99-100. The AMC based its recommendation on the February 2013 letter
from the appellant’s private treating physician’s assistant that documented the appellant’s lumbar
spine pain and requested workplace accommodations. See R. at 99. The AMC concluded that the
evidence of record supported a finding that the appellant’s lumbar spine disability picture was
exceptional or unusual and caused marked interference with employment. R. at 100; see 38 C.F.R.
§ 3.321(b)(1) (2014). Thereafter, in an undated decision, the Director of VA’s Compensation
Service (Director) agreed with the AMC’s recommendation and assigned the appellant a 10%
extraschedular disability rating. R. at 97. In November 2014, the RO implemented this award,
characterizing the appellant’s award as a “30[%] evaluation” and explained: “This evaluation is not
based on evaluation criteria in the rating schedule. The reason this non-schedular evaluation is
assigned is because [the Director of the] Compensation Service granted an additional 10[%] to the
evaluation based on extra schedul[a]r consideration due to marked interference with employment.”
R. at 76.
5
In March 2016, the Board granted the appellant an earlier effective date for the award of
an extraschedular rating, but affirmed the assignment of the 10% extraschedular rating and
continued the assigned 20% schedular disability rating. R. at 53-63. The appellant appealed the
Board’s determination that a higher extraschedular rating was not warranted. In a joint motion for
partial remand (JMPR) granted by the Court in December 2016, the parties agreed that the Board
had provided inadequate reasons or bases for that determination. R. at 32-37.
In April 2017, the Board issued the decision on appeal, denying the appellant an
extraschedular rating in excess of 10%. The Board conducted a de novo review of the Director’s
decision granting the 10% extraschedular rating, acknowledged the parties’ JMPR, and stated that
its task was to “determine whether a higher rating is warranted based on the [v]eteran’s medical
records and disability picture as they pertain to his ability to work.” R. at 6. The Board consulted
VA’s Medical Electronic Performance Support System, which the Board explained “includes the
types of considerations used in assessing the assigned ratings as compared with specific symptoms
and resulting limitations.” Id. The Board then reviewed the evidence of record and determined
that an extraschedular rating in excess of 10% was not warranted. R. at 9. This appeal followed.
II. ANALYSIS
On appeal, the appellant argues that the Board improperly relied on the schedular rating
criteria to deny him entitlement to a higher extraschedular rating, Appellant’s Brief (Br.) at 11-18,
and that the Board provided inadequate reasons or bases by failing to explain its conclusion that
he is only one-third disabled, id. at 18-20, and by failing to account for the August 2012 private
anesthesiologist’s report, which the appellant characterizes as showing that he is 48% disabled, id.
at 20-22. The Secretary counters that the Board “simply used the degree of disability contemplated
by a 40% schedular rating as a comparison to ensure that [the a]ppellant’s rating adequately
reflected the degree of disability that he actually experiences,” Secretary’s Br. at 5; that the Board’s
statement that the appellant is one-third disabled was merely a restatement of the fact that the
appellant’s combined disability rating is 30%, id. at 17-18; and that the appellant has not
demonstrated that the August 2012 private anesthesiologist’s reference to “ODI = 48%,” R. at 317,
means that the appellant is 48% disabled, Secretary’s Br. at 18-20. The Secretary urges the Court
to affirm the Board’s decision.
6
The VA rating schedule is based, “as far as practicable, upon the average impairments of
earning capacity.” 38 C.F.R. § 3.321(b)(1) (2018). In exceptional cases, the rating schedule may be found inadequate to compensate a claimant’s unique set of symptoms and an extraschedular rating may be approved by the Under Secretary for Benefits or the Director of the Compensation Service. 2 Id. Once the Under Secretary or Director issues a decision granting or denying entitlement to an extraschedular rating, the Board may review that decision de novo. See Kuppamala v. McDonald, 27 Vet.App. 447, 456 (2015) (“[T]he Director’s decision is ‘in essence the de facto decision of the agency of original jurisdiction . . . . It is simply a decision that is adopted by the RO and reviewed de novo by the Board.'” (quoting Wages v. McDonald, 27 Vet.App. 233 239 (2015) (per curiam)). Further, the Board may assign the extraschedular rating that it deems appropriate after reviewing the Director’s decision. Id. at 457 (“Once the Director has conducted his review, . . . all three elements of Thun [v. Peake, 22 Vet.App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009),3] are reviewable by the Board.”); see
also id. at 456 (“[T]here is no discernable distinction between the Board’s ability to review a denial of an extraschedular rating and review of an award of an extraschedular rating.”). As with any
material issue of fact or law, the Board in determining whether a higher extraschedular rating is
warranted must provide a statement of the reasons or bases for its determination “adequate to
enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate
review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1);
Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
The appellant argues that the Board failed to adequately explain its conclusion that his
condition does not “result in a degree of interference with employment greater than one-third
normal efficiency.” R. at 9; Appellant’s Br. at 18-20. The Court agrees.
2 Section 3.321(b) was amended, effective January 8, 2018, and the current version of the regulation provides
that “the Director of Compensation Service or his or her delegate is authorized to approve” an extraschedular rating.
38 C.F.R. § 3.321(b)(1) (eff. Jan. 8, 2018).
3 The first step in the Thun inquiry is to determine whether “the evidence before VA presents such an
exceptional disability picture that the available schedular evaluations for that service-connected disability are
inadequate.” Thun, 22 Vet.App. at 115. If the adjudicator determines that the available schedular ratings are
inadequate, the second step of the inquiry requires the adjudicator to “determine whether the claimant’s exceptional
disability picture exhibits other related factors,” such as marked interference with employment or frequent periods of
hospitalization. Id. at 116. Then, if the first two steps have been satisfied, the adjudicator must refer the claim to the
Under Secretary for Benefits or the Director of the Compensation Service for a determination of whether an
extraschedular rating is warranted. Id.
7
Here, the Board summarized the evidence, explained that the appellant would have to show that his condition, although unique, was as severe as that contemplated by a 40% schedular disability rating, and then stated:
[T]he [appellant’s] limitations in his work include the need for a flexible schedule
to accommodate flare-ups of pain but still enabling him to work full[-]time, the
need for changes in position[,] including preparing his reports at a desk, and the
ability to leave work in the event of severe pain. The [appellant] required the ability
to change position to relieve his pain[,] which began after sitting or standing for
more than 30 minutes, and experienced pain if he had to walk further than one
quarter of a mile. . . . He experienced some nausea from his pain medication and
some impaired concentration because of pain and impaired sleep. However, the
evidence does not support a finding that the [appellant’s] thoracolumbar disability
and back pain, irrespective of other disabilities, result in a degree of interference
with employment greater than one-third normal efficiency. R. at 9. The Board offered no explanation why the evidence cited demonstrated only a one-third reduction in workplace efficiency. Although the Secretary asserts that the Board’s reference to
“one-third” is simply a restatement of the appellant’s current 30% combined disability rating, see Secretary’s Br. at 17-18, the Board itself did not provide this explanation, see R. at 9, and the Secretary’s argument amounts to a post hoc rationalization, which the Court cannot accept. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“[A]gency ‘litigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”). Remand
is warranted for the Board to provide an adequate statement of reasons or bases for its conclusion.
See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-67.
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant. Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court
will not ordinarily consider additional allegations of error that have been rendered moot by the
Court’s opinion or that would require the Court to issue an advisory opinion”); see Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional
evidence and argument on the remanded matter, including the specific arguments raised here on
appeal, and the Board is required to consider any such relevant evidence and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider
8
additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky
v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that
“[a] remand is meant to entail a critical examination of the justification for the decision,” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s
April 11, 2017, decision is VACATED and the matter is REMANDED for further proceedings
consistent with this decision.
DATED: July 6, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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